PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 January 2003
         DOCKET NUMBER: AR2002080679


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Marla J. N. Troup		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, reinstatement of his sergeant first class/E-7 (SFC/E-7) promotion effective date and date of rank to 1 November 2000, and all back pay and allowances due as a result.

3. The applicant states, in effect, that he was reduced on 8 January 2002, based on a flawed body fat evaluation conducted upon his arrival at Fort Huachuca, Arizona, to attend the Advanced Noncommissioned Officers Course (ANCOC). He claims that there was no verification of the result of the body fat measurement and a second measurement was not taken to confirm the result while he was still at the NCO Academy at Fort Huachuca. He states that five body fat measurements taken over the following five weeks at his parent unit, which all showed him well within body fat standards, were never considered or reviewed. He believes that the reason he exceeded the standard at the Academy was that the class was overbooked and 107 students showed up to fill 96 seats. He claims that if the Academy had remeasured him some other students would still have to be sent home because of the overbooking.

4. The applicant states that his reduction was based solely on this one flawed body fat measurement conducted at the NCO Academy because it resulted in his being denied enrollment in the ANCOC. He further states that when he returned to the class in 2002, he was measured prior to being admitted into the course and was found to be almost two percent below his maximum allowable body fat content. He was again measured prior to starting Phase II of the course, and he was again determined to be almost two percent below his body fat standard.

5. The applicant claims that the reduction caused a financial burden on he and his family for almost seven months, but it did not impact the way he performed his daily duties at work or while a student, which can be confirmed in his evaluation report (NCOER) for this period and in his performance evaluation (AER) from school. He concludes that he is not asking for promotion ahead of his peers or trying to get something he has not fully earned. He wore the SFC rank for thirteen months, and during that time he never brought shame or dishonor on his unit, the NCO Corps, of the Army. He now asks that a procedural error be corrected and that his rank and pay be reinstated for the period in question.

6. The applicant’s military records show that he is currently serving on active duty as a SFC/E-7 and he is assigned to the National Imagery and Mapping Agency, Bethesda, Maryland.

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7. Order Number 286-26, dated 12 October 2000, issued by the Total Army Personnel Command (PERSCOM), Alexandria, Virginia, authorized the applicant’s promotion to SFC/E-7, effective 1 November 2000. This order also contained special instructions indicating that those members promoted to
SFC/E-7, who did not have ANCOC credit were promoted conditionally. These special instructions further indicated that those members conditionally promoted would have their promotions revoked and their names removed from the centralized list if they failed to meet the Noncommissioned Officer Education System (NCOES) requirement.

8. On 7 January 2002, the applicant reported to the NCO Academy, Fort Huachuca, to attend the ANCOC. During his in-processing, it was determined by school officials that his body fat content was 26.29 percent, which exceeded his authorized body fat content of 24 percent.

9. On 8 January 2002, the NCO Academy commandant, a command sergeant major (CSM), denied the applicant enrollment in the ANCOC, and reported to PERSCOM that the applicant had been denied enrollment due to overweight.

10. Orders Number 59-1, dated 28 February 2002, published by PERSCOM, revoked the applicant’s promotion to SFC/E-7, and applicant was administratively removed from the promotion list due to his failure to attend his scheduled ANCOC class.

11. In February 2002, the applicant submitted a request asking that he be reinstated on the promotion list and that he be scheduled to attend the ANCOC. He raised the same issue in this request that he has now presented to this Board. The applicant’s case was strongly supported by his chain of command, as evidenced in a memorandum from the Chief of Staff of his organization to PERSCOM, which recommended that the applicant’s request be approved, and confirmed that he met body fat standard.

12. On 7 March 2002, the Chief, Training Analysis Management Branch, PERSCOM, informed the applicant’s commander that the request for the applicant’s reinstatement had been approved. It further stated that the Noncommissioned Officer Education System (NCOES) Reinstatement Panel had determined that the applicant should be reinstated to the promotion list, but that the applicant had to attend and complete the ANCOC prior to promotion. Finally, the applicant was advised that further relief requests must be forwarded to this Board for action.

13. On 28 August 2002, the applicant graduated from the Imagery Analyst ANCOC. Order Number 247-2, dated 4 September 2002, issued by PERSCOM, authorized the applicant’s promotion to SFC/E-7, with an effective date and date of rank of 28 August 2002.
14. The applicant provided a DA Form 705 (Army Physical Fitness Test Scorecard) and six Body Fat Worksheets (DA Forms 5500-R) that confirm that he was measured at his parent organization and met the body fat standard on seven separate occasions between May 2001 and February 2002.

15. Army Regulation 600-8-2 provides the policies on initiating, transferring, and removing a Flag. Paragraph 1-13 provides specific circumstances that require a flagging action, and it includes, in pertinent part, entry into the weight control program. Paragraph 1-14 contains a list of actions that are prohibited by a Flag, which includes attendance at civil or military schooling.

16. Army Regulation 600-9 establishes policies and procedures for the implementation of the Army Weight Control Program. Paragraph 21 provides the procedures to be followed once it has been determined a soldier is overweight. First a weight control counseling will be conducted by a health care professional; the soldier will be entered into the weight control program; a FLAG will be initiated; a medical evaluation will be conducted to determine if an underlying medical condition is the reason the soldier is overweight; and the unit is responsible to conduct monthly weigh-ins.

17. The Army’s ANCOC general attendance policy states, in pertinent part, that there is no deadline in determining when the soldier must attend ANCOC. However, generally a soldier is scheduled to attend the ANCOC within a year after the release of the appropriate SFC/E-7 promotion list. It further states that soldiers who fail to satisfy the NCOES requirement for any reason other than those that qualify for a deferment are removed from the centralized promotion list. This policy also indicates that soldiers who feel there was either an error, injustice, or some other type of wrongdoing that contributed to this status, may request reinstatement through PERSCOM's NCOES Reinstatement Panel. If the voting panel finds irregularities, it can reinstate the soldier onto the SFC/ANCOC selection list.

CONCLUSIONS:

1. The Board notes the applicant’s contention that the effective date and date of rank of his promotion to SFC/E-7 should be restored to 8 January 2000, because the revocation of this promotion was based on an unverified and flawed body fat measurement that resulted in his unjustly being denied enrollment in the ANCOC, and it finds this claim has merit.

2. By regulation, a FLAG action must be imposed on members who are determined to be overweight, and these members must be placed in weight control program. There is no evidence that the applicant was ever placed in an overweight status between May 2001 and February 2002, or that any of the stated required actions ever took place.
3. The evidence of record confirms that the applicant was measured and met the body fat standard on seven separate occasions between May 2001 and February 2002. The only measurement taken during this period that found he did not meet the body fat standard was the one conducted at the NCO Academy in January 2002, which resulted in his being denied enrollment in the ANCOC.

4. In addition, subsequent to his being denied enrollment in the ANCOC, the applicant successfully appealed this action. Based on the merits of his case, he was reinstated to the promotion list by the PERSCOM NCOES Reinstatement Panel. Further, he attended and graduated from the ANCOC and was again promoted SFC/E-7 on 28 August 2002.

5. In view of the facts of this case, the Board finds there is sufficient evidence to call into question the validity of the body fat measurement used to deny the applicant’s enrollment in the January 2002 ANCOC. Therefore, the Board concludes that it would serve the interest of equity and justice to reinstate the applicant’s original SFC/E-7 promotion effective date and date of rank of
1 November 2000, and to provide him any back pay and allowances due as a result.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the SFC/E-7 promotion effective date and date of rank of the individual concerned is 1 November 2000; and by providing him any back pay and allowances that are due as a result.

BOARD VOTE:

__RVO__ __AAO _ __MJNT__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond V. O’Connor, Jr. _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002080679
SUFFIX
RECON
DATE BOARDED	2003/01/16
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 314	131.0400
2. 315	131.0500
3.
4.
5.
6.